Preview: Policing the Police: Protecting Civil Remedies in Cases of Retaliatory Arrest

Randolph A. Robinson II[1]

On March 21, 2012, the Supreme Court heard oral arguments in Reichle v. Howards.  The case came to the Court on appeal from the Tenth Circuit’s decision in Howards v. McLaughlin.  The Tenth Circuit held that Mr. Howards could pursue a civil claim against several Secret Service Agents for retaliatory arrest in violation of his First Amendment rights.  The Agents challenged this decision, and the Supreme Court granted certiorari on the question of whether the existence of probable cause to make an arrest bars a First Amendment retaliatory arrest claim.  The briefing of both parties, and the subsequent oral arguments at the Court, have framed this issue as a tug-a-war between free speech rights and Secret Service’s need to exercise discretion in protecting the President and Vice President.  Unfortunately, framing the issue in such narrow terms fails to contemplate the consequences of allowing probable cause to serve as a bar to constitutional tort claims.  Additionally, such a formulation all but ignores the importance of causation in determining liability for tortious actions.

By arguing that probable cause should bar civil actions for retaliatory arrest the Agents are essentially asking the Court to abandon the legal principal of causation.  This argument is logical if one believes that arrests are only motivated by a single factor: that factor being the existence of probable cause.  In such a simplified world there would be no need for courts to examine an officer’s motivation, because probable cause would be the only causal factor for arresting an individual.  However, we do not live in a simple, single-factor world.  While probable cause is a legal requirement to arrest an individual, in many cases it is not the only factor motivating the arresting officer’s decision, thereby creating a multiple-factor causation problem.

The multiple-factor causation problem is not unique to retaliatory arrest cases, and other areas of the law can shed light on how to best approach this issue.  Multiple-factor causation is often present in Title VII employment discrimination cases where the employer articulates a legitimate nondiscriminatory reason for taking action against an employee. This assertion of a legitimate nondiscriminatory reason is akin to the existence of probable cause in a retaliatory arrest context.  While both probable cause and a legitimate nondiscriminatory reason may demonstrate that the defending party was justified in its action, it does not foreclose the possibility that the action taken–by the employer or police officer–was not motivated by other factors. Similarly, in a retaliatory arrest context, the existence of probable cause should place the burden of proof on the plaintiff to demonstrate a discriminatory animus was a motivating factor in the arrest, but should not serve as a complete bar to suit.

Multiple-factor causation is also an inherent problem in traditional tort litigation, forcing states to enact comparative negligence statutes to address the problem.  To date, forty-six states have abandoned the traditional concept of contributory negligence which held that any culpability on the part of the plaintiff was a complete bar to recovery, and instead adopted a comparative negligence standard.  At first glance the analogy between comparative negligence and probable cause in a retaliatory arrest case may not be clear.  The concept of comparative negligence recognizes that one’s liability for a tortious act that injures another should not be excused simply because the injured party may be partially at fault.  Comparative negligence recognizes the need to analyze and weight multiple causal factors by assigning fault to each party on a fractional basis. Similarly, a claim for the violation of an individual’s civil rights due to a retaliatory arrest should not be dismissed simply because the plaintiff’s actions created probable cause.  This would be akin to not imparting liability to a driver who runs a red light, simply because the car he hit was missing a tail light cover.  

In a § 1983 claim for retaliatory arrest, the injury occurs not because of the arrest itself, but by the suppression of a constitutionally guaranteed right through means of an arrest.  If courts were to apply the same theory that underpins comparative negligence to cases of retaliatory arrest, it would require an examination of the relative weight of causal factors not of the arrest itself, but of the arresting officer’s motivation. Under such a formulation, probable cause would create a strong presumption that the arresting officer’s motivation was within legal parameters, while still providing plaintiffs with an opportunity to demonstrate, based on specific facts, that other causal factors should be given more weight.

The argument that the presence of single causal factor should bar plaintiffs from recovering in retaliatory arrest cases is even more troubling when the single factor being advocated for as determinative is probable cause.  The standard for probable cause is extremely low, allowing police officers the ability to detain virtually any person at any time, simply by alleging a minor violation or infraction. Courts that have held that the existence of probable cause forecloses the arrestee’s ability to recover civil damages in retaliatory arrest cases have adopted a rule that assumes probable cause is the only causation of the arrest.  Such a default is problematic because the low standard for establishing probable cause will almost always provide an arresting officer with immunity, regardless of what truly motivated the arrest.

For further explanation and analysis, see Randolph A. Robinson II, Policing the Police: Protecting Civil Remedies in Cases of Retaliatory Arrest, 89 Denv. U. Law. R. ___ (forthcoming 2012).


[1] J.D. Candidate, 2013, University of Denver Sturm College of Law.